Citation Nr: 18152587 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-03 364 DATE: November 27, 2018 ORDER Service connection for a left hip disorder is denied. Service connection for a left ankle disorder is denied. Service connection for a right ankle disorder is denied. Service connection for right ear hearing loss is denied. REMANDED The claim of entitlement to a compensable, initial rating for right knee strain is remanded. The claim of entitlement to a compensable, initial rating prior to October 13, 2015, and in excess of 10 percent thereafter for left knee strain is remanded. The claim of entitlement to service connection for bilateral pes planus is remanded. The claim of entitlement to service connection for a skin disorder, to include eczema and dermatitis, is remanded. The claim of entitlement to service connection for a sleep disorder is remanded. FINDINGS OF FACT 1. At no time during the pendency of the claim has the Veteran had a diagnosis of a left hip disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. 2. At no time during the pendency of the claim has the Veteran had a diagnosis of a left ankle disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. 3. At no time during the pendency of the claim has the Veteran had a diagnosis of a right ankle disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. 4. At no time during the pendency of the claim has the Veteran had a diagnosis of right ear hearing loss, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1992 to December 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 10 percent, effective October 13, 2015, for left knee strain. Because the Veteran continues to disagree with the rating and effective date assigned, the claim remains in appellate status, and the Board has re-characterized the issue to include staged ratings as shown on the title page. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). A November 2015 Report of General Information indicates the Veteran verbally expressed his desire to withdraw his appeal concerning the issues of service connection for a left hip disorder, right ankle disorder, right ear hearing loss, skin disorder, and sleep disorder. Although the AOJ did not instruct the Veteran to provide a statement in writing to properly withdraw his appeal, the AOJ did provide the Veteran with a statement of the case concerning the issues, and the Veteran’s representative included such issues in a June 2018 appellate brief. Accordingly, the Board must proceed with adjudication of the Veteran’s claims. See 38 C.F.R. § 20.204(b) (except when made on the record at a hearing, appeal withdrawals must be in writing). The Board also notes the Veteran’s representative requested, on his behalf, a hearing regarding a proposed reduction from 60 percent to noncompensable for pseudofolliculitis barbae. As the representative limits the hearing request to a particular disability, which is not on appeal, and the Veteran’s substantive appeal clearly indicates that he did not want a hearing relating to the issues on appeal, the Board finds the appellate review herein does not prejudice the Veteran. Service Connection 1. Left hip, left ankle, and right ankle disorders The Veteran asserts he has current disorders of the left hip, left ankle, and right ankle related to service, and specifically, in-service personal trauma. Here, the Board finds that at no time during the pendency of the claim has the Veteran had a current diagnosis of a left hip, left ankle, or right ankle disorder, and the record does not contain recent diagnoses of such disabilities prior to the Veteran’s filing of a claim. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied if the veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296(1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). Here, VA treatment records do not reflect diagnoses of a left hip, left ankle, or right ankle disability. With respect to the left hip, a September 2012 VA general examination does not demonstrate a diagnosis of a left hip disability. Concerning the ankles, during a September 2012 VA ankle examination, the Veteran reported that he fractured his right ankle in 1993 while running and injured his left ankle in 2008 when he fell down a set of stairs. However, upon physical examination, the examiner found the Veteran did not have a disability of the ankles. Specifically, the VA examiner specifically noted the service treatment records and Veteran’s statements regarding an in-service ankle injury; however, the VA examiner found the Veteran’s ankle conditions had resolved. Upon review, the Board affords significant probative value to the September 2012 VA examiners’ negative opinions regarding current chronic disabilities related to the reported in-service events. In pertinent part, the opinions reflect consideration of all relevant facts, to include the Veteran’s lay statements as well as the in-service and post-service treatment records, and includes a detailed rationale for the conclusions reached. See Nieves-Rodriguez, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although the Veteran claims that he has current disabilities related to his left hip, left ankle, and right ankle, the Board notes that a layperson without medical training is not qualified to render medical opinions regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson, 581 F.3d 1313 (Fed. Cir. 2009). However, as the diagnoses of hip disorders and ankle disorders are not simple questions that can be determined based on mere personal observations by a lay person, the Veteran’s lay testimony is not competent to establish medical etiologies or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. As such, the Board finds the causal relationship between any current symptoms service does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. Here, it is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer such a medical opinion. Grottveit, 5 Vet. App. at 93. Therefore, his statements regarding current symptoms related to in-service injuries are not afforded probative weight. Further, the Board finds significant that the medical evidence does not reflect reports of pain pertaining to the Veteran’s left hip, right ankle, or left ankle. In fact, the Veteran himself has not asserted that he experienced pain during the pendency of the appeal. Rather, his contentions focus on the reported in-service injuries. Therefore, pain alone, in this case, cannot serve as a functional impairment and therefore qualify as a disability. In summary, the Board finds that at no time during the pendency of the claim does the Veteran have a current diagnosis of a left hip disability, left ankle disability, or right ankle disability, and the record does not contain recent diagnoses of disabilities prior to the Veteran’s filing of a claim. Consequently, service connection for such disorders is not warranted. As the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt doctrine is not applicable and his claims must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Right ear hearing loss The AOJ denied service connection for right ear hearing loss on the basis that the evidence did not reflect hearing loss for VA purpose. In this regard, for applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. While service treatment records show asymmetric hearing loss in February 2000, Although the audiogram results are difficult to evaluate, a September 2012 in-service audiological evaluation shows normal hearing in the right ear: HERTZ 1000 2000 3000 4000 RIGHT 10 15 15 15 The Veteran’s speech recognition ability was 94 percent in his right ear and the examiner found the responses for the right ear suggested hearing within normal limits. Similarly, an October 2015 VA audiological examination also shows normal hearing in the right ear: HERTZ 1000 2000 3000 4000 RIGHT 25 15 10 20 The Veteran’s speech discrimination score was 100 percent, and the VA examiner diagnosed normal hearing loss. Here, the record does not reflect a frequency of 40 decibels or greater at 500, 1000, 2000, 3000, or 4000 Hertz at any time during the pendency of the appeal. In addition, none of the frequencies is at least 26 decibels, and the speech recognition scores using the Maryland CNC test were both above 94 percent. 38 C.F.R. § 3.385. Here, the Board acknowledges the Veteran’s claimed in-service exposure to noise. Additionally, the Board recognizes his assertions that he experiences right ear hearing loss and his competency to describe the symptoms he experiences. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board further notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. However, a hearing loss disability is not the type of disability that is subject to lay diagnosis. Hence, while the Veteran is competent to report the symptoms he experiences, he is not competent to diagnose right ear hearing loss that meets VA definition as he has not been shown to have the medical training necessary to do so. In this case, the clinical evidence does not demonstrate a competent diagnosis of right ear hearing loss at any time prior to or during the pendency of the appeal. The Board concludes, therefore, that the medical findings are of greater probative value than the Veteran’s allegations regarding the existence of a right ear hearing loss disability. Without evidence of a current right ear hearing loss disability prior to or during the pendency of the appeal, the preponderance of the evidence is against the Veteran’s claim. Consequently, service connection for such disorder is not warranted. The benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 57. REASONS FOR REMAND 1. Knees The Veteran contends that increased ratings for his service-connected right knee strain and left knee strain are warranted as such are more severe than as reflected by the currently assigned ratings. In this regard, he most recently underwent a VA examination pertinent to such disabilities in October 2015. In May 2017, the Veteran submitted VA 21-526EZ, Fully Developed Claim requesting increased ratings for his right knee strain and left knee strain. In the June 2018 appellate brief, the Veteran’s representative cited VA treatment records dated in November 2015 showing the Veteran’s pain recurred several weeks earlier and that he had received three steroid injections in each knee since last year. In addition, the orthopedic surgeon therein stated the plan included consideration of arthroscopic debridement with lateral retinacula release. Upon review, the Board finds such evidence suggests the Veteran’s knee symptomatology may have increased in severity since the October 2015 VA examination, and therefore, remand is necessary to schedule him for an appropriate VA examination to assess the current nature and severity of his service-connected right knee strain and left knee strain. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Such examination should comply with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, while on remand, updated VA treatment records dated from May 2018 to the present should be obtained for consideration in the Veteran’s appeal. 2. Bilateral pes planus In the July 2013 rating decision, the AOJ denied service connection for bilateral pes planus as the evidence did not show that the Veteran’s pre-existing bilateral pes planus was permanently aggravated by service. The AOJ based the decision, in part, on a November 2012 VA examiner’s finding the Veteran’s condition had resolved and there was no current diagnosis of pes planus. In this regard, the Veteran’s entrance examination shows a notation of asymptomatic pes planus, a March 1999 service treatment record shows reports of pain and an assessment of bilateral pes planus, and an August 2012 report of medical history shows the Veteran reported foot trouble. Additionally, a March 2018 VA treatment record demonstrates a diagnosis of bilateral pes planus. As a result, the Board finds an addendum opinion and, if necessary, examination is necessary to determine whether service permanently aggravated a current disability beyond the natural progression of the disease. 3. Skin disorder, to include eczema and dermatitis The AOJ previously denied service connection for dyshidrotic eczema, face, and head, and dermatomycosis tinea versicolor face based, in part, on the lack of a current diagnosis. Significantly, a September 2012 VA skin examination noted a diagnosis of pseudofolliculitis barbae but was negative for any other skin disability. However, VA treatment records reflect diagnoses of dermatitis, unspecified diagnosis in August 2018 and seborrheic dermatitis in February 2017. In addition, service treatment records dated in September 2005, September 2011, and August 2012, reflect notations of dermatomycosis tinea versicolor, atopic eczematous dermatitis, problems with seborrhea and atopic dermatitis, and severe eczema, respectively. As such, the Board finds an addendum opinion and, if necessary, additional examination are warranted to determine whether any current skin disorder is related to service. 4. Sleep disorder The AOJ previously denied service connection for sleeping disorder based, in part, on the lack of a current diagnosis. Here, a June 2018 VA treatment record reflects a provisional diagnosis of sleep apnea during the appeal period. In addition, the Veteran’s August 2012 report of medical history shows the Veteran’s reports of trouble sleeping. As such, the Board finds an addendum opinion and, if necessary, additional examination are warranted to determine whether any current sleep disorder is related to service. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from February 2018 to the present. 2. Afford the Veteran appropriate VA examination to determine the current nature and severity of his service-connected right knee strain and left knee strain (knee disabilities). The record, to include a complete copy of this Remand, must be made available to the examiner, and the examination report should include discussion of the Veteran’s documented medical history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. If possible, the examination should be conducted during a flare-up. (a.) The examiner should identify the current nature and severity of all manifestations of the Veteran’s knee disabilities. (b.) The examiner should record the range of motion of the knees observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (c.) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (d.) If the Veteran endorses experiencing flare-ups of a knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. (e.) Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. 3. Forward the record, to include a copy of this Remand, to an appropriate VA medical professional to obtain an addendum opinion regarding the etiology of bilateral pes planus. The need for another examination is at the discretion of the examiner offering the requested addendum opinion. Thereafter, the examiner should address the following inquiries: (a.) Is there is clear and unmistakable evidence that the pre-existing bilateral pes planus did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? (b.) If there was an increase in severity, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. 4. After obtaining all outstanding treatment records, forward the file to an appropriate VA clinician(s) for an addendum opinion addressing the etiology of any currently diagnosed skin disorder and sleep disorder. The record and a copy of this Remand must be made available to the clinician. The clinician shall note in the examination report that the record and the Remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (a.) For each currently diagnosed disorder, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is related to the Veteran’s service. The clinician should address the service treatment records reflecting notations of a skin disorder and trouble sleeping. A rationale should be provided for any opinion offered. 5. Readjudicate the claim. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel